Recent amendments to the Endangered Species Act and an uncertain future for species at risk: a case study of Ontario’s Niagara Region

We are currently living in the sixth mass extinction of biodiversity where species are going extinct as a result of anthropogenic activities (Briggs 2017; Ceballos et al. 2017). Globally, land-use change and the overexploitation of Earth’s natural resources are the greatest drivers contributing to the disruption of ecosystems (IPBES 2019). According to the latest United Nations report on biodiversity loss, roughly one million species are at risk of extinction and many of them within decades (IPBES 2019). As humans continue to accelerate biodiversity loss, species will perish, food chains will be disrupted, and ecosystems could be severely impacted. In light of this, humans must be part of the solution by protecting nature now and in the future.

Ontario is one of only eight subnational jurisdictions¹ in Canada to have existing species at risk (SAR) legislation (Olive 2014). Its 2007 Endangered Species Act (hereafter the OESA or the Act) is intended to protect and recover at-risk species and their critical habitats. The Act, often touted as the strongest SAR legislation in all of Canada (Olive and Penton 2018), requires the development of recovery strategies for threatened and endangered species that specify measures to restabilize populations and secure habitat (Ontario 2020a, 2020b, 2020c). Species are classified as endangered, threatened, special concern, extirpated, or not at risk by an external scientific body, known as the Committee on the Status of Species at Risk in Ontario (COSSARO). Data for year-end 2020 indicate that 243 species are listed on the official Species At Risk in Ontario (SARO) List, with 117 classified as endangered, 54 as threatened, 56 as special concern, and 16 as extirpated (Ontario 2020a, 2020b, 2020c). Of the 243 SAR in Ontario, only 158 recovery strategies have been published (Ontario 2020a, 2020b, 2020c).

In February 2019, the Progressive Conservative government announced that it would make changes to the OESA, with several amendments potentially resulting in serious consequences to SAR. Bill 108, eventually tabled as the More Homes, More Choice Act, 2019, outlined significant amendments including:

These amendments suggest the government is prioritizing economic gains while neglecting the long-term environmental and social consequences of minimizing conservation efforts (Bergman et al. 2020; Rutledge 2020). These changes could potentially pose serious threats to SAR in Ontario for several reasons. First, it changes the permit and agreement process for development projects that impact habitat and SAR (Wood Bull Blog 2019; Bergman et al. 2020). The responsible Minister can now issue a permit to an individual for an activity that would have been prohibited if that individual agrees to pay a species conservation fee. Similarly, the Act amended the ESA to include landscape agreements in which a proponent can harm habitat in a designated geographic area by agreeing to carry out “specified beneficial actions” that will assist with the protection or recovery of one or more species specified in the agreement. In some cases, these agreements may also require the proponent to pay a species conservation fee (Wood Bull Blog 2019). While it is true that developers could recreate or remediate habitat suitable for a species in a different location, these amendments still open the door to habitat destruction and signal that developers can buy their way out of obeying the OESA.

Second, allowing individuals with community knowledge to have a say in whether a species is classified as at risk (including as endangered, threatened, or special concern) could shift the decision-making process from a scientific one to a political or economic one. New members are not required to have extensive background in ecology or conservation biology. The previous members sitting on the COSSARO committee were those with expertise in Western science and (or) Aboriginal traditional ecological knowledge (Olive 2014). The new amendments do not clearly define “community knowledge” but it could mean industry and developer representatives, whose agenda is different than that of other members on the committee, will be invited to join COSSARO and participate in the classification of Ontario’s flora and fauna.

Third, if COSSARO classifies a species based on its geographic range rather than its population status in Ontario, it could become very difficult to list any new species on the SARO List. While COSSARO used to only consider species population numbers in provincial boundaries, it must now consider the species’ global range. Moreover, the Ontario government can request that COSSARO reassess currently listed species at any time. Thus, COSSARO may find that many species, like the Bobolink (Dolichonyx oryzivorus) or Lake Erie Water Snake (Nerodia sipedon insularum) (which have already been listed), have stable global populations and thus do not qualify anymore for protection in Ontario even though the local population numbers are decreasing. Essentially, this amendment provides a way for the Ontario government to avoid protecting species while ignoring the possibility that if a species were to be extirpated from Ontario, it could drastically affect the existing food web and could threaten the survival of other organisms (Malmstrom 2010). It could also lead to the loss of genetically distinct populations, and it clearly pushes responsibility for the survival of species to other jurisdictions (some of which may not have SAR legislation).

Fourth, making endangered species wait up to five years to receive protection is a long period of time since species populations could rapidly decline even further, and this would increase the risk of them being extirpated in Ontario. Often a species is listed because it needs immediate protection of its critical habitat. For instance, in Australia, the Orange-bellied parrot (Neophema chrysogaster) barely survived extinction because immediate action was taken to protect the rapidly declining species (Martin et al. 2012). A five-year window allows for a lot of potentially irreversible harm to occur to the species and (or) its habitat.

On 6 June 2019, Bill 108, More Homes, More Choice Act, received Royal Assent (approval of the bill by the Lieutenant Governor on behalf of the Queen), but there has been no further update regarding the matter (Legislative Assembly of Ontario 2019). The resulting amendments to the OESA pose a significant challenge to conservation efforts in Ontario. Effective legislation can play an important role in protecting SAR. When assessing the progress of species recovery in the United States between 1990 and 2010, 35% of the listed species under the Endangered Species Act were seen as stable, while 8% were improving (Evans et al. 2016).

To date, only one study has examined the More Homes, More Choice Act amendments in detail. Bergman et al. (2020) published an Editorial in FACETS that outlined the main concerns that scientists have about the amendments. These include (i) potential dilution of COSSARO membership, (ii) lower threat category based on geographic range, (iii) increased delays in protection, (iv) landscape agreements that allow broadscale harm to SAR, and (v) the SAR Conservation Trust. We use these concerns as a starting place for this paper. The scientists feel that “the changes to Ontario’s ESA substantially reduce protections designed to preserve Ontario’s biodiversity.” Here we assess the empirical evidence to support these claims.

To examine the impact of the More Homes, More Choice Act on the OESA and SAR in Ontario, this paper uses the Niagara Region in Ontario, Canada, as a case study. Southern Ontario is heavily populated both in terms of humans and SAR, with “one in three Canadians” residing in the region and “over one-third of Ontario’s species at risk” (David Suzuki Foundation and Ontario Nature 2011). The Niagara Region is located in Southern Ontario near the border of the United States and contains 12 municipalities.² As of 2016, the region’s population is 447 888, with St. Catharine’s containing the greatest number of residents at 133 113 (Niagara Region n.d.) (Fig. 1).

The Niagara Region is a popular tourist destination and around 20 million people visit the region annually mostly because of Niagara Falls (Penney 2012). The region is also part of the Carolinian forest zone, which holds the most plant and animal species compared to all other ecosystems across Canada (Penney 2012). The Carolinian zone is home to 40% of Canada’s native plants, 50% of their birds, and 66% of their reptiles (Jalava et al. 2015). Several bodies of water surround the Niagara Region, providing wetland habitats to the many SAR that rely on them for survival. Additionally, wetlands provide ecosystem services including water purification, flood protection, and they help to mitigate climate change (Environmental Commissioner of Ontario 2018a). Southern Ontario has lost over 72% of its wetlands (Environmental Commissioner of Ontario 2018b), and over 85% of Niagara’s original wetlands have been altered for human use (Ontario Biodiversity Council 2015). In Southern Ontario, the ecosystem services that wetland habitats generate are valued at over $51 billion (Bell 2016).

Increasing urbanization and the resulting economic growth in the Niagara Region is concerning from a conservation standpoint. If habitat is not protected, ecosystems can collapse. Protected areas can aid in protecting species from human activities, allow for stable species populations, and maintain healthy ecosystems (Scott et al. 2001). Moreover, economic growth, such as more homes for human beings, can also have indirect impacts on species and habitat through consequences including climate change and invasive species (Otero et al. 2020). This makes the Niagara Region a good case study in examining the tensions between human homes and nature’s home.

The overarching goal of this research is to understand how the amendments to the OESA could impact SAR in the Niagara Region of Ontario. This paper argues that the More Homes, More Choice Act weakens protections for SAR and puts them at an increased risk of extinction. As described in the next section, we use data obtained through interviews with regional experts to offer insight into what the changes to the Act are and why minimizing extinctions in Ontario should matter to humans and society. While this study examines only a small region of southern Ontario, the findings are relevant to other regions where changes to the OESA could weaken species protection. The central issues that our data highlight are that the recent amendments make it harder to list and protect Ontario’s species while simultaneously prioritizing economic growth over biodiversity conservation.

The overarching research question of this study is: How might the 2019 changes to the OESA affect SAR in the province? The Niagara Region serves as a case study to develop an understanding of how species could be impacted by the amendments. We rely on a two-fold method to understand implications of the More Homes, More Choice Act. We created a database of potentially impacted species, and we conducted semi-structured interviews with participants who are knowledgeable about the policies and SAR. These methods will be briefly outlined below.

The results of our study are divided into two sections. First, we examine the results of the species list to illustrate the number of species that could be impacted by the OESA amendments. Second, we present the results of the interviews to contextualize the species list and to further expand on other possible implications of the OESA.

Our central research question is how might the 2019 amendments to the OESA affect SAR in the province? In a previous overview of the amendments by a group of scientists from Carleton University, Bergman et al. (2020), suggested there are five reasons to be concerned: (i) potential dilution of COSSARO membership, (ii) lower threat category based on geographic range, (iii) increased delays in protection, (iv) landscape agreements that allow broadscale harm to SAR, and (v) the SAR Conservation Trust. We found support mainly for reasons (ii), (iv), and (v). Indeed, our main finding, based on data collection about existing listed species as well as interviews with local actors, is that the amendments will have numerous implications, but the central concern is that the Ontario government has made it harder to list and protect species with a geographical distribution beyond provincial borders.

Specifically, we illustrate that as many as 37 currently listed species in the Niagara Region could be impacted by the 2019 classification amendment. That is an incredible array of species threatened with possible extinction in a small region of the province. There are 71 species from the Region listed on the OESA, but if COSSARO is asked to reassess those species—and the amendment enables the government to request reclassification—then 37 species could be delisted because their population numbers outside Ontario are potentially secure. Plants and birds, which constitute 53% of all listed species in Ontario, are facing the greatest likelihood of delisting in Niagara, with 73% having a globally secure population according to NatureServe (16 of the 37 species being plants and 11 being birds).⁸ To support this concern, we interviewed local experts in the Niagara Region, and the majority of interviewees felt that basing species classification on their global geographic range was the most alarming change to the OESA. There was suspicion from three interviewees that the provincial government is attempting to remove species from the SARO list, leading to less species that would require recovery strategies or any form of protection.

Our second finding, emerging from the interviews, is that the pay-in-lieu fee could have significant negative effects on the OESA. Here the amendment enables a party to conduct harmful activities to list species (and (or) habitat) if they make a financial payment to a new fund called the Species-at-Risk Conservation Fund. All six respondents were concerned about this change and had serious questions about how it will be implemented. The government has discretion over how the fund is used and which species will benefit. How can one claim that SAR will be protected while also claiming that developers can pay into a fund that would allow them to build on critical habitat for these species? The interviewees agreed that the changes to the Act are expected to negatively impact SAR as some of their protections have been removed. It also led the interviewees to conclude that the amendments are driven by economics and not science.

Third, we found that interviewees were very concerned about growth and development in the Niagara Region, especially in urban areas and along the shorelines. We examined our data set of the 71 listed species and acknowledge that many of these species have range in such areas. According to the recovery plans posted on the Ontario government website for listed species in the region, 11 species have been threatened by urban development, and four have been threatened by shoreline development⁹ (Ontario 2020a, 2020b, 2020c). We found that several species are also threatened by pollution and runoff from urban and agricultural activities. Specifically, aquatic species and ones that depend on wetlands for habitat, such as the Lilliput (Toxolasma parvum), can be threatened by this pollution. The More Homes, More Choice Act does not necessary amplify these risks to Niagara species, but as the name of the Act suggests, development is the goal. This is another example of how the economy is being prioritized over biodiversity, as feared by the interviewees.

Lastly, our study illustrates that government and nongovernmental organization actors see the Niagara Region as rich in biodiversity and believe that species need more protections, not less. Along with their intrinsic value, species can provide ecosystem services, such as water purification and providing recreational benefits to people (Millennium Ecosystem Assessment 2005). Recent studies have tried to quantify these ecosystem services in an attempt to depict their actual value in the market. For instance, the Greenbelt in Ontario provides approximately $2.6 billion in ecosystem services annually (Wilson 2008). At a time when the biodiversity crisis is a significant global issue, the government should not remove key protection measures that are meant to help SAR. Instead, the government should address the causes that are impacting SAR, especially development activities that lead to habitat destruction. For example, wetlands need to be protected instead of being converted for development purposes. Forest cover should remain intact, especially in regions where many SAR reside. Bodies of water, such as the Niagara River, need to be remediated so the polluted water does not contaminate our drinking water. These are all serious threats for the SAR in the Niagara Region. While interviewees agreed it is too soon to evaluate the amendments since in many cases they have yet to be fully implemented in the region, there was still widespread concern that biodiversity will decline as a result of the More Homes, More Choice Act.

Therefore, based on a small case study of the Niagara Region, we concur with Bergman et al. (2020) that recent amendments to the threat category based on geographic range and the economic prioritization of development that allows for broadscale harm via a Conservation Trust is very concerning for biodiversity in Ontario. While our interviewees did not specifically discuss COSSARO membership¹⁰ or increased delays in protection, there was widespread concern that economics—as opposed to science—is now the basis for decision-making on SAR in the province.

This paper is a first step in providing some empirical data on what the 2019 More Homes, More Choice Act could mean for SAR in Ontario. That Act introduced at least five changes that scientists are worried about: (i) potential dilution of COSSARO membership, (ii) lower threat category based on geographic range, (iii) increased delays in protection, (iv) landscape agreements that allow broadscale harm to SAR, and (v) the SAR Conservation Trust (Bergman et al. 2020). While we examined only one region of the large province, we found good reason for the scientists’ concern.

In the Niagara Region alone, 37 species could be delisted if COSSARO—an agency that includes community members—is asked to assess species based on their entire geographic range as opposed to only their status in the province. We suspect this finding holds true for species in other regions of the province. The exact number of species that could lose protection across the province is unknown, but we now know the minimum is 37 species. Thus, just the change in classification—let alone the other amendments—could result in half of the listed species in this region losing their protection. The other amendments would likely compound this and could perhaps put even more species at risk. Future research should track COSSARO membership changes (as nonscientists join), classification decisions, and requests by the government to reassess currently listed species. We anticipate that fewer species will be listed moving forward and that some species will be delisted in the next few years as COSSARO is asked to assess classifications.

When first passed into law, the 2007 OESA was celebrated as the most stringent species-at-risk policy in Canada (Nixon et al. 2012; Olive and Penton 2018). Over time, exemptions and problems with implementation and enforcement eroded public trust and scientific confidence in the protection of SAR (Nixon et al. 2012; Olive 2014). However, the More Homes, More Choice Act was the first time that major amendments to the policy were legislated by government. It is important to note that the Progressive Conservative majority government did not to open up the OESA for discussion in the Legislative Assembly, but instead opted to make the amendments through an entirely different Act—one aimed at economic development that necessitated removing barriers, like SAR protection. While it may be true that Ontarians need homes, the More Homes, More Choice Act overlooks the basic scientific fact that SAR also need homes. Failure to find a sustainable balance will have detrimental effects for biodiversity, including humans, in Ontario.

An early version of this paper was written as a research paper for my Master of Science in Sustainability Management program at the University of Toronto Mississauga. I would like to thank Barbara Murck for her comments and suggestions on early drafts of this paper. I would also like to thank the interview participants for the time they took in speaking with me about species at risk in Ontario.